Pressing business

Other key issues that will influence acquisition within
the Homeland Security Department include planning
for the presidential transition, addressing potential
conflicts of interest, defining inherently governmental
functions and managing large programs, such as
the Coast Guard's Deepwater program.

TRANSITION PLANNING

For the transition, DHS contracted with the National
Academy of Public Administration for advice, which
released its recommendations in June. Overall, contractors
are not likely to be affected by the transition
because current contracting officers, budget
authorities and existing contracts remain in place,
DHS spokesman Larry Orluskie said.

Alan Chvotkin, executive vice president of the
Professional Services Council (PSC), agreed.
"From a contracting perspective, there will be no
change and no loss of contracts or change in mission"
because of the transition, he said. At the
same time, the new administration certainly is
expected to set its own priorities and review existing
programs and strategies, which is likely to
affect future procurements. But the changes are
not likely to be seen until later in 2009, he said.

CONFLICTS OF INTEREST

On conflicts of interest, the Federal Acquisition Regulatory Council recently asked for comments on
crafting a section of the Federal Acquisition
Regulation to address personal and organizational
conflicts of interest. The PSC provided comments
on both, suggesting that regulations ought to be
narrowly focused to address certain criticisms
raised by Government Accountability Office and
other governmental auditors and clarify the responsibilities
of contractors and contract officials.

In a recent example, Sens. Joseph Lieberman
(I-Conn.) and Susan Collins (R-Maine), the chairman
and ranking member of the Senate
Homeland Security and Governmental Affairs
Committee, respectively, criticized the Federal
Emergency Management Agency for overlooking
an apparent organizational conflict of interest and
other problems.

Lieberman and Collins wrote to FEMA officials
last month alleging that a contractor improperly
helped to write a FEMA request for proposals for a
contract for the upcoming TopOff 5 national disaster
drill, and the contractor also might have an organizational
conflict of interest related to the work.
Sources said the contractor involved is Science
International Applications Corp., which said it is
investigating the matter internally. SAIC is one of
the bidders on the contract.

INHERENTLY GOVERNMENTAL FUNCTIONS

Lieberman and Collins also alleged that the contractor
involved in writing the FEMA RFP carried
out an inherently governmental function, an apparent
violation of the FAR. A subpart of the FAR
describes inherently governmental functions, but
they continue to be a source of disagreement.
"There is a discussion about what are inherently
governmental functions," said Karen Manos, copartner
in charge of Gibson Dunn and Crutcher's
Washington office. "If they are defined too broadly,
it will cut out contracts."

"The term inherently governmental is very confusing
and hard to pin down," said W. Bruce Shirk,
special counsel in the government contracts group
at the Sheppard Mullin Richter law firm in
Washington.

As an alternative to that wording, he pointed to
the procurement guidelines in California, which
since 1934 have prohibited outsourcing of any
functions that can be carried out by a civil employee.
Although California has used that guideline
effectively, it would be difficult to apply to the federal
government because there is no precedent for
it, Shirk added.

DEEPWATER CONCERNS

The Senate appropriations panel also focused on
procurement workforce issues for the Coast
Guard's $24 billion Integrated Deepwater Systems,
a program started in 2002 to replace cutters,
patrol boats and other assets. The committee recommended
$4.5 million to hire 65 additional
acquisition employees to help the Coast Guard
perform the systems integrator role for Deepwater.
The Coast Guard took over that role in April 2007.

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